Friday, 9 May 2014

The
Single Payment Scheme definition of permanent pasture has come under challenge
in the EU Court of Justice. The SPS defines permanent pasture as “landused to
grow grasses or other herbaceous forage naturally (self-seeded) or through
cultivation (sown) and that is not included in the crop rotation of the holding
for five years or longer”.

A German farmer who had reseeded his grassland with
a different mix, brought a case in which he argued that the reseeding operation
broke the continuous five-year period and that his land should not be
considered as permanent pasture. He wanted to let the land, and arable land
attracted a higher rent.

Ahead
of the Court making its final decision the advisory opinion of Eleanor Sharpston, the
Advocate-General to the Court, has been published. Her opinion is that where
land is used for growing grass or herbaceous forage, the five-year permanent
pasture qualifying period is broken if the land has been ploughed and reseeded
with a different grass or herbaceous forage crop. Operations that fall short of
removal of the previous crop (e.g. harrowing and over-seeding) will not break
the qualifying period.

﻿﻿﻿﻿

Basic Payment Scheme and Greening

The
distinction between arable land and permanent grassland is crucial. Under the new 'greening' rules Member States have an obligation to maintain levels of permanent pasture, and
the extent of a claimant's ecological focus area is triggered by how much 'arable' land he has (with some exemptions in place for predominantly grassland farms).

We’ve all adopted the “if
the field has been in grass for five years or longer it is permanent grass,
whether or not it has been reseeded” line. Until now that has been fine and,
from an administrative point of view, is reasonably straight forward. If the
European Court does adopt the Advocate-General’s opinion, things could change.

CAP regulations have always involved a certain amount of legal fiction.
Definitions might not stand up to logical analysis but provide workable ways of
implementing a support schemes without complete bureaucratic meltdown. A change
to the permanent pasture definition that reflects the reality of ploughing and
re-seeding may make sense to many, but will add to the uncertainty the new
scheme already brings with it.

The
Advocate-General’s opinion isn’t the last word – the Court of Justice has to
make its own ruling in due course, but in the vast majority of cases it adopts
the Advocate-General’s advice. This isn’t great timing for a court decision
that upsets the current thinking on permanent pasture even if it
does not change things on the ground for many UK farmers.

Permanent grassland definitions

Current Defra/RPA guidance

“If you enter land as grass or herbaceous
forage on six consecutive SPS applications the land is classified as
permanent pasture at the sixth application…if you have re-sown land with
grass or other herbaceous forage during the five years, it is still
permanent pasture.”

Basic Payment Scheme definition

“Land used to grow grasses or other herbaceous
forage naturally (self seed) or through cultivation (sown) and that has not
been included in the crop rotation for five years or more…”

Advocate-General’s opinion

“Where the [grassland] area has been ploughed
up, removing the previous crop, and reseeded with a different type of
herbaceous forage, then there is crop rotation precluding classification as
permanent pasture. Where, however, the previous crop is not removed by
ploughing up the land but is partly modified by overseeding, then there is
no crop rotation and the area is to be classified as permanent pasture.”